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HomeMy WebLinkAboutContract 51115 CITY SECRETARY CONTRACT NO. URESERVICE CONTRACT BETWEEN THE CITY OF FORT WORTH AND EMERSON PROCESS MANAGEMENT POWER & WATER SOLUTIONS,INC This SureService Contract ("Contract') is made and entered into by and between the CITY OF FORT WORTH ("City"), a Texas home rule municipal corporation, acting by and through, its duly authorized Assistant City Manager, and EMERSON PROCESS MANAGEMENT POWER& WATER SOLUTIONS INC., ("Emerson"), a Corporation, each individually referred to as a"party" and collectively referred to as the"parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Sure Services Contract; 2. Exhibit A–Scope of Services, including Emerson Offer No. WTR16067702MCR2; 3. Exhibit B–Price Schedule; and 4. Exhibit C–Verification of Signature Authority Form. This Contract,including Exhibits A,B,and C make up the entirety of the Contract. To the extent there is any conflict between this Contract and any Exhibits attached hereto,this Contract document shall control. I. Scope of Work Emerson will sell to the City and City will buy from Emerson the SureService program as set forth in more detail in Exhibit A—Scope of Work to this Contract. II. Term This Contract shall begin on May 1, 2018 ("Effective Date") and shall expire on April 30, 2023 ("Expiration Date"), unless terminated earlier in accordance with this Contract. III. Terms of Payment City shall pay Emerson in accordance with the provisions of this Contract and Exhibit"B"–Price Schedule. City shall pay Emerson annually in accordance with Exhibit B. Emerson shall invoice the City in accordance with Exhibit B,and City shall remit payment within thirty days of receiving a correct and accurate invoice from Emerson. Total Payments made by City to Emerson pursuant to or in connection with this contract shall not exceed one hundred and eighty-four thousand,eight OFFICIAL,RECORD CI'1 Y SECRETARY FT.iAlORTH,TX hundred and three dollars($184,803.00).Emerson shall not perform any additional services or bill for expenses incurred for City not specified by this Contract unless City requests and approves in writing the additional costs for such services. City shall not be liable for any additional expenses of Emerson not specified by this Contract unless City first approves such expenses in writing. IV. Termination 4.1. Written Notice. City or Emerson may terminate this Contract at any time and for any reason by providing the other party with 30 days' written notice of termination. 4.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Emerson of such occurrence and this Contract shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Contract is terminated prior to the Expiration Date, City shall pay Emerson for onsite services, preparatory time and training actually rendered up to the effective date of termination. In the event that services are terminated by City mid-year, as determined by Exhibit B, City shall be reimbursed by Emerson the pro rata price based on the percentage share of annual support provided. For example,the annual payment according to Exhibit B runs from May 1 to April 30 each year of the contract; if a party terminates effective November 1, the City shall be reimbursed for 50% of the prepaid amount since only 6 months of services were provided. Emerson shall continue to provide City with services requested by City and in accordance with this Contract up to the effective date of termination. In the event Emerson has received access to tangible City Information or data as a requirement to perform services hereunder, Emerson shall return all City provided data to City in a machine readable format or other format as mutually agreed. V. Taxes Emerson's price excludes sales and use taxes.City is a tax exempt entity and will provide Emerson with Tax Exemption Certificate upon contract execution. VI. Delivery,Title and Risk of Loss Delivery to City within the USA shall be F.O.B.delivery site plus shipping and handling.Material returned to Emerson by City shall be F.O.B. delivery site. For any materials returned due to physical damage, breach of warranty,or due to nonconformity, Emerson shall pay for all shipping costs for the items return. VII.Force Majeure Neither Party will be liable for failure or delay in performance resulting from any cause beyond its reasonable control and for acts of God. In the event of such delay, the time for performance/delivery will be extended by a period of time reasonably necessary to overcome the effect of the delay. VIII. Warranties 1. Equipment and Service Warranty — for equipment and services provided hereunder, Emerson warrants that the equipment will be free of defects in material; workmanship and title which materially affect its utility;and that the services provided will reflect competent knowledge and judgment. The warranty period shall expire 12 months from delivery or completion of the service. 2. Component Coverage—In the event City contracts for the Component Coverage module the equipment provided under such coverage will be free of defects in material and workmanship. The warranty period for such equipment shall expire upon the termination of the Components Coverage module or 90 days from delivery whichever occurs last. 3. Remedies— In the case of a nonconformity in the warranties set forth herein above, and if Emerson is notified in writing of such nonconformity during the applicable warranty period, it shall be corrected by, in the case of equipment, repair or replacement of defective part(s) F.O.B. delivery point; in the case of software, correction, in the medium originally supplied,or provision of a procedure to correct material errors; or, in the case of service, re-performance of the nonconforming portion of the service. If such remedies are impracticable, Emerson may refund the purchase price for the nonconforming equipment, software, or service. Any warranty specified herein is conditioned upon: a) proper handling, installation and maintenance; b)not having been subjected to accident, alteration,abuse or misuse; and c)the City providing necessary access and assistance for Emerson to fulfill its warranty obligations. City is responsible for insuring that its item(s) are delivered to Emerson without further damage due to shipping/handling. The above programs do not apply to items which have failed due to physical damage directly caused by City; improper installation by the City, improper operation or maintenance; unauthorized modifications, unauthorized adjustments and/or repairs; or other causes misuse or misapplication. City shall notate any physical damage of the items and shall provide Emerson with that information when returning the item. Upon receipt, Emerson shall inspect the items and promptly notify City of any additional physical damage. Unless stated otherwise herein, third party software/equipment shall be warranted and remedied on a pass through basis in the same manner and for the same period and extent provided by the original software/equipment manufacturer. THE WARRANTIES AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE). IX. Limitation of Liability EMERSON SHALL NOT BE LIABLE TO CITY FOR AN AGGREGATE LIABILITY AMOUNT EXCEEDING THREE TIMES THE TOTAL PRICE PAID TO EMERSON UNDER THIS CONTRACT. THIS LIMITATION OF EMERSON'S LIABLITY SHALL NOT APPLY TO AMOUNTS OWED TO THIRD PARTIES RESULTING FROM EMERSON'S INDEMNIFICATION OBLIGATIONS UNDER THIS CONTRACT, PROVIDED THAT EMERSON'S LIABLITY HEREUDER ONLY COMMENCES WHEN CITY TENDERS SUCH CLAIMS TO EMERSON. THIS PARAGRAPH ONLY APPLIES TO INDIRECT, INCIDENTIAL OR CONDEQUENTIAL DAMAGES. THE PARTIES AGREE THAT NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER; DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT; LOSS OF PROFITS OR REVENUE; LOSS OF USE OF CITY'S PROPERTY, EQUIPMENT OR POWER SYSTEM; INCREASED COSTS OF ANY KIND, INCLUDING BUT NOT LIMITED TO CAPITAL COSTS, FUEL COST AND COST OF PURCHASED OR REPLACEMENT POWER OR CLAIMS OF CUSTOMERS OF THE CITY. THIS ARTICLE SHALL PREVAIL OVER ANY CONFLICTING OR INCONSISTENT PROVISIONS IN THIS CONTRACT. X. Indemnification 10.1 GENERAL INDEMNIFICATION- SUBJECT TO ARTICLE IX, EMERSON HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF EMERSON, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 10.2 INTELLECTUAL PROPERTY INDEMNIFICATION —Subject to Article IX Emerson agrees to defend, settle, or pay, at its own cost and expense, any claim or action against City for infringement of any U.S. patent, copyright, trade mark, or trade secret to the extent that any Emerson manufactured goods or software infringes on any U.S. patent, copyright, trade mark or trade secret in accordance with this Contract, it being understood that this agreement to defend, settle or pay shall not apply, if the goods or software were not designed by the Emerson or if the goods or software were designed by the City or were modified by or for the City in a manner to cause them to become infringing, or if the City misuses the Emerson manufactured goods or software, or if infringement is based upon the use of goods or software in connection with goods or software and/or documentation not manufactured by the Emerson. Emerson shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate, at their own expense, in any and all such settlement, negotiations, or lawsuit as necessary to protect City's interest, and City agrees to cooperate with Emerson in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against City for infringement arising under this Contract, City shall have the right to conduct the defense of any such claim or action and negotiations for its settlement or compromise and to settle or compromise any such claim; however, Emerson shall fully participate and cooperate with City in defense of such claim or action.City agrees to give Emerson timely written notice of any such claim or action, with copies of all papers City may receive relating thereto.Notwithstanding the foregoing,City's assumption of payment of costs or expenses shall not eliminate Emerson's duty to indemnify City under this Contract subject to Article IX and to the extent that any Emerson manufactured goods or software infringes on any valid U.S.patent, copyright, trademark, or trade secret. If the Emerson manufactured goods or software and/or documentation is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Emerson shall, at its own expense provide a commercially reasonable alternative, and as City's sole remedy, either: (a) procure for City the right to continue to use the goods or software and/or documentation; or (b) modify the goods or software and/or documentation to make them non-infringing, provided that such modification does not materially adversely affect City's authorized use of the goods or ; or (c) replace the goods or software and/or documentation with equally suitable, compatible, and functionally equivalent non-infringing goods or software and/or documentation at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Emerson refund the amounts of the infringing goods or software. XI. Independent Contractor It is expressly understood and agreed that Emerson shall operate as an independent contractor as to all rights and privileges and work performed under this Contract,and not as agent,representative or employee of City. Subject to and in accordance with the conditions and provisions of this Contract, Emerson shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees,consultants and subcontractors.Emerson acknowledges that the doctrine of respondeat superior shall not apply as between City,its officers,agents,servants and employees,and Emerson, its officers, agents, employees, servants, contractors or subcontractors. Emerson further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Emerson. It is further understood that City shall in no way be considered a Co-employer or a Joint employer of Emerson or any officers, agents, servants, employees or subcontractors of Emerson. Neither Emerson, nor any officers, agents, servants, employees or subcontractor of Emerson shall be entitled to any employment benefits from City.Emerson shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. XII. Governing Law This Contract shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Contract, venue for such action shall lie in state courts located in Tarrant County,Texas.or the United States District Court for the Northern District of Texas, Fort Worth Division. XIII. Survival The Limitation of Liability, Audit, Indemnification provisions, and Intellectual Property Rights provisions shall survive termination, expiration or cancellation of this Contract or the purchase order to which these terms and conditions apply as further addressed in this section. No amendment, modification or alteration of these terms and conditions shall be binding unless the same shall be in writing and duly executed by the parties. If any term or condition is under any circumstances deemed invalid, illegal or unenforceable, the remaining terms and conditions shall be construed with the invalid, illegal or unenforceable provision(s) deleted. Emerson's indemnification obligations shall expire three (3) years after expiration or termination of this Agreement. . City's right to Audit shall expire one (1) year after the expiration or termination of this Agreement. XIV. Intellectual Property Rights/Software License Emerson retains for itself all of its intellectual property rights in and to any Emerson product and supporting documentation furnished hereunder. Emerson grants to City a nonexclusive, nontransferable license to utilize one copy(unless multiple copies or concurrent or simultaneous use rights are elsewhere authorized) of any Emerson software furnished hereunder. Such license is limited to City's internal use in the equipment in which it is initially installed. All title and ownership of any software, including without limitation, embedded software, modifications, derivative works,copyright and all rights in such software shall remain exclusively with Emerson. The license fee for the Emerson software is included in the contract price, provided, however, if concurrent or simultaneous usage licenses are furnished,City may not at any one time exceed the maximum number of licenses purchased. City shall not itself, or with the assistance of others, reverse compile, reverse engineer, or in any other matter attempt to decipher in whole or in part the logic or coherence of any software,hardware or supporting documentation provided hereunder. City may make one backup copy of such software for evaluation, installation and maintenance of the equipment in which the software is installed. Notwithstanding any other provisions herein to the contrary, Emerson or applicable third party owner shall retain all exclusive rights, interest and title to its respective firmware and software. City's use of the firmware and software shall be governed exclusively by Emerson's and/or third party owner's applicable license terms. Information marked proprietary shall be disclosed in confidence on a need to know basis on the condition that it is not to be reproduced, copied or used for any other purpose than the purpose for which it is provided and shall not be disclosed to third parties without the written notice to Emerson. In the event that the City receives a request under the Texas Public Information Act for information that Emerson has marked as proprietary (by affixing the work "proprietary" on the bottom of each page), the City shall provide written notice Emerson of the request and provide information about how to contest the release of the documents to the Attorney General. Emerson understands that the City cannot make arguments to the Texas Attorney General on its behalf. XV. Facilities and Access to Equipment The City will furnish at no cost to Emerson suitable working space, storage space, adequate telephone, light, ventilation, regulated electric power, and outlets for testing purposes. These facilities will be within a reasonable distance from the system equipment covered by this Contract. Emerson shall have full and free access to Emerson-provided equipment in order to provide the on-site corrective support services provided under this Contract. City will identify person(s) who will interface with Emerson under the terms of this Contract. Any maintenance or repair services performed on the Emerson-provided equipment by unauthorized personnel as reasonably determined by Emerson and City, resulting in additional material or corrective support service requirements by Emerson will be invoiced at applicable time and material rates and conditions of service then in effect. The Parties agree that authorized personnel include, but are not limited to, Emerson employees and representatives, City employees trained by Emerson, and City representatives who have been trained by Emerson. XVI. Solicitation of Employees Neither City nor Emerson shall, during the term of this Contract and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Contract, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. Emerson reserves the right to determine the qualifications of and the source of Emerson personnel required to fulfill its obligations under this Contract. Unless agreed upon otherwise, the Parties agree that the City may not hire a Emerson Field Service Engineer/Technician for one (1) year following termination of this Contract. XVII. Exclusions In the event that software becomes outdated or unsupported by the manufacturer,Emerson shall notify the City in writing. Emerson shall provide City a time period, not shorter than ninety days (90) to transition to a supported software. If the City does not transition to a supported software within the ninety day period, the City's software will no longer be eligible for service once the manufacturer support provided to Emerson is stopped. If the software that is no longer supported or is otherwise outdated is provided to the City by Emerson, Emerson shall provide the updated software or license to the City at a mutually agreed upon price. XVIII. Compliance with Laws, Ordinances,Rules and Regulations Emerson agrees that in the performance of its obligations hereunder, it shall comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this Contract will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If City notifies Emerson of any violation of such laws, ordinances, rules or regulations, Emerson shall promptly desist from and correct the violation. XIX. Non-Discrimination Covenant Emerson, for itself, its personal representatives, assigns, subcontractors and successors in interest,as part of the consideration herein,agrees that in the performance of Emerson's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. SUBJECT TO SECTION IX, IF DURING THE PERFORMANCE OF EMERSON'S DUTIES AND OBLIGATIONS HEREUNDER, ANY CLAIM ARISES FROM A VIOLATION OF THIS NON- DISCRIMINATION COVENANT BY EMERSON, ITS PERSONAL REPRESENTATIVES, ASSIGNS, SUBCONTRACTORS OR SUCCESSORS IN INTEREST, EMERSON SHALL INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM VIOLATION OF THE NON-DISCRIMINATION COVENANT TO THE EXTENT CAUSED BY EMERSON, ITS PERSONAL REPRESENTATIVES, ASSIGNS, SUBCONTRACTORS OR SUCCESSORS IN INTEREST VIOLATION OF THE NON-DISCRIMINATION COVENANT XX. Disclosure of Conflicts and Confidential Information 23.1 Disclosure of Conflicts. Emerson hereby warrants to City that Emerson has made full disclosure in writing of any existing or potential conflicts of interest related to Emerson's services under this Contract. In the event that any conflicts of interest arise after the Effective Date of this Contract, Emerson hereby agrees immediately to make full disclosure to City in writing. 23.2 Confidential Information. Both parties, its officers, agents and employees, agree that it shall,subject to section XIV above,treat written information clearly marked as"Confidential"and provided to the other party ("Confidential Information")as confidential and shall not disclose any such information to a third party without the prior written approval of the other party for a period of five(5)years from the termination or completion of this Contract In the event Emerson receives a written request from a third party not in associate with or under the control of the City for City's Confidential Information after the fifth (5) anniversary of the termination of expiration of the contract, Emerson shall contact the City in writing and shall not release it to the requesting party. Notwithstanding anything herein to the contrary, both parties agree that information shall not be deemed Confidential Information for purposes hereof if the information is already known to the receiving party at the time of disclosure, or could have been known to the receiving party based upon information in receiving parties' possession at such time; is or becomes publicly known through no wrongful act of the receiving party; is rightfully received from a third party who has the right to disclose it to the receiving party; is independently developed by receiving party; is approved for release by the written authorization of the disclosing party; or the receiving party is required to disclose by law. 23.3 Unauthorized Access. Both parties shall store and maintain Confidential Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt Confidential Information in any way. Each party shall notify the other party, in writing, immediately if the security or integrity of any Confidential Information has been compromised or is believed to have been compromised, in which event, both parties shall, in good faith, use all commercially reasonable efforts to cooperate in identifying what information has been accessed by unauthorized means and shall protect such Confidential Information from further unauthorized disclosure. XXI. Right to Audit Emerson agrees that City shall, until the expiration of one (1) year after final payment under this contract, or the final conclusion of any audit commenced during the said one year, have escorted access to and the right to examine at reasonable times during normal business hours, and in accordance with a reasonable time frame, any directly pertinent books, documents, papers and records,Emerson to verify the time and material amounts invoiced under this Contract. The City's costs and expenses associated with the audit shall be borne by the City regardless of the outcome. City shall give Emerson reasonable advance written notice of intended audits. XXII. Assignment Clause Neither Emerson nor City may assign this Contract in whole or in part without the prior written consent of the other Party. XXIII. Notices Every notice or written communication required or permitted under this Contract shall be signed by a duly authorized representative of the party initiating such notice or communication and shall either be delivered to an officer or authorized representative of the party to whom it is directed, or sent by mail (postage prepaid) or telegram to the following addresses (which may be changed by written notice from the party in question): For Emerson: Emerson Process Management Power& Water Solutions, Inc. 200 Beta Drive Pittsburgh, Pennsylvania 15238 Fort the City: Darla Morales/ Parts/Materials Supervisor Village Creek Water Reclamation Facility 4500 Wilma Lane, Arlington Texas 76012 With copies to: City Manager's Office ATTN: Water Dept. ACM 200 Texas Street Fort Worth, Texas 76102 City Attorney's Office ATTN: Water Dept. Attorney 200 Texas Street Fort Worth, Texas 76102 XXIV. Entire Contract This Contract, including the documents incorporated by reference herein and attachments hereto constitutes the entire Contract between the parties. The terms hereof, including any changes to scope or services, may not be modified or amended except in writing signed by the authorized representative of both City and Emerson. XXV. Governmental Powers It is understood and agreed that by execution of this Contract, City does not waive or surrender any of its governmental powers or immunities. XXVI. No Waiver The failure of City or Emerson to insist upon the performance of any term or provision of this Contract or to exercise any right granted herein shall not constitute a waiver of City's or Emerson's respective right to insist upon appropriate performance or to assert any such right on any future occasion. XXVII. Headings Not Controlling Headings and titles used in this Contract are for reference purposes only, shall not be deemed a part of this Contract, and are not intended to define or limit the scope of any provision of this Contract. XXVIII.Review of Counsel The parties acknowledge that each party and its counsel have reviewed and revised this Contract and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Contract or Exhibits A, B, and C. XXIX. IMMIGRATION AND NATIONALITY ACT As applicable to Emerson's work performed in the U.S., Emerson shall verify the identity and employment eligibility of all employees who perform work under this Contract, shall complete the Employment Eligibility Verification Form (I-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Emerson shall provide City with a certification letter that it has complied with the verification requirements required by this Contract. Subject to Article IX, Emerson shall indemnify City from any penalties or liabilities to the extent cause by Emerson's violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Emerson. XXX. Signature Authority The person signing this Contract hereby warrants that he/she has the legal authority to execute this Contract on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Contract and any amendment hereto, may be executed by any authorized representative of Emerson whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit"C". Each party is fully entitled to rely on these warranties and representations in entering into this Contract or any amendment hereto. XXXI. Change in Company Name or Ownership Emerson shall notify City's Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of Emerson or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director's resolution approving the action or similar document as agreed between the parties in writing. Failure to provide the specified documentation so may adversely impact future invoice payments. XXXII. Prohibition on Contracting with Companies that Boycott Israel Emerson acknowledges that in accordance with Chapter 2270 of the Texas Government Code,the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, Emerson certifies that Emerson's signature provides written verification to the City that Emerson: (1) does not boycott Israel; and(2)will not boycott Israel during the term of the contract. [THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK] T"T "FITNESS "'HEREOF, the parties hereto have executed this Contract, to be effective this day of , 20 FOR THE CITY OF FORT WORTH: FOR EMERSON PROCESS MANAGEMENT POWER& WATER SOLUTIONS, INC.: 2"3/7 SZ5U5 Name: Su Sam+ "- v� Assistant City Manager Title: bky(eta'r Date: Date: l� APPROVAL RECOMMENDED e /J OR l�i0 ►-: s Date: %�ItJ U it APPROVED AS TO FORM AND ATTEST: LEGALITY Jo_A a e, Assista t City Attorney �Mar�J. Kayser, City Se ary <01m— Date: Date: Contract Compliance Manager: M&C No.: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. W"a Name a'A' Title OFFICIAL RECORD CITY SECRE"1'ARY FT.WORTH$ TX EXHIBIT A SCOPE OF SERVICES Emerson shall provide the following services: 1. List of SureService Modules and Descriptions 1.1. Expert Telephone Support SureService Customer Response Center will be available twenty-four hours a day, seven days a week to immediately diagnose and resolve Ovation DCS problems. Armed with powerful troubleshooting skills and a thorough knowledge of the control systems, the SureService support team will work with the City to gather relevant information to correctly identify the problem and diagnose the situation. After isolating the problem,the SureService team will suggest corrective actions and works with the City to resolve the situation. 1.2. Ovation Guardian Support Guardian enables the City to view system-specific data from multiple sources, which can then be analyzed and used to plan future expenditures and improve decision making.Guardian also provides technical support information,the status of SureService contracts, and the state of any technical support calls. Users can configure their Guardian dashboard to receive automated email messages for any number of system related notifications. The Ovation registration utility is used to collect and analyze relevant details about the Ovation system to provide insight into any potential disparities within the s stem. 1.3. Software Update with Antivirus Program Provide protective software to guard against viruses,cyber attacks, and other unwanted intrusions. Benefits • Includes all the features of the SureService Software Update Program • Receives antivirus signature updates • Includes Kaspersky license 1.4. Scheduled On-Site Service Receive scheduled on-site visits ensure that critical clean up, backup, and maintenance services are performed regularly,without diverting manpower from critical applications. Emerson will honor requests for particular field engineers whenever possible and the same field engineer is dispatched for each scheduled visit. Scheduled On-site Service provides additional staff and support when needed, keeping control systems running at peak performance. City can schedule service visits on a regular basis or as-needed. Scheduled on-site service includes simple control system changes, PID and algorithm adjustments, and other cleanup and inspection services, which can significantly improve plant performance. Maintenance and preventative activities include (but are not limited to): • Back up DPU/Controller application software to the hard drive and tape • Perform Ovation database reconciliation and verification • Back up the Software Server to tape • Perform file clean-up on the Software Server and other WEStations • Implement minor control and graphics changes at the direction of the customer • Download and analyze alarm history. • Check configuration files for consistency 1.5. Emerson Training Programs Emerson's Training Programs are designed for the ongoing education and development of the operators,engineers and technicians that support plant operations. City staff can attend training courses as needed. Ovation training programs include: • Standard course offerings • On-site and customized training pro rg ams • Training at customer sites • Custom-developed course content • On-line instructor-led classes through Emerson's Virtual Classroom Curricula in both Ovation and WDPF platforms. These comprehensive training programs address the configuration, programming, administration, and operation of our product lines. Operators,technicians, and engineers gain an individual perspective on the understandingand nd operation of an Ovation or WDPF system. EXHIBIT B-PRICE SCHEDULE 5-Year Pricing(Contract Period: May 1,2018-April 30,2023) Item ## Year 1 Year 2 Year 3 Year 4 Year 5 SureService Module (5/1/18- (5/1/19- (5/1/20- (5/1/21- (5/1/22- 4/30/19) 4/30/20) 4/30/21) 4/30/22) 4/30/23) 1 Expert Telephone Support $17,023 $17,874 $18,768 $19,706 $20,692 2 Guardian Support No Charge No Charge No Charge No Charge No Charge 3 Software Updates with Anti-Virus $10,994 $11,544 $12,121 $12,727 $13,363 4 Scheduled On-Site Service Class A 1 $8,259 $8,672 $9,106 $9,561 $10,039 5 Training PrograM2 $4,021 $4,222 $4,433 $4,655 $4,888 Module Sub Total $40,297 $42,312 $44,427 $46,649 $48,981 Less 15%Gold Package Discount s $6,045 ${+_;,I7 $6,664 $6,997 $7,347 After Package Discount Sub Total $34,252 $35,965 $37,763 $39,651 $41,634 Less 5%Multi-Year Discount $1,713 $1798 $1,888 $1"Q8.1 $2,08 After Multi-Year Discount Sub Total $32,540 $34,167 $35,875 $37,669 $39,552 4a Travel & Living Expenses $1,000 $1,000 $1,000 $1,000 $1,000 resVk Total $33,$40 $3$,167 $36,87$ $38,669 $40,SS2 Grand Total $184,803 Notes: 1. Scheduled On-Site Service includes 3 days of field service per year, Service days are regular 8-hour days,Monday-Friday,except holidays.Service days must be used during the contract year cannot be extended(except for multi-year contract). 2. Training includes 1 man-week training course per year at our training center in Pittsburgh. Travel and living expenses are not included 3. Payment for services provided under this Sure Service Contract shall be made on a pre-paid annual basis.Emerson shall provide an invoice for the City for the upcoming year no later than April 1 each year. City shall remit payment for the services within 30 days of the invoice date. EXHIBIT C VERIFICATION OF SIGNATURE AUTHORITY Emerson's annual report can be accessed online at www.annualreport.emerson.com. Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind Emerson and to execute any contract, agreement, amendment or change order on behalf of Emerson. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Emerson. City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any contract, agreement or amendment with Emerson. Emerson will submit an updated Form within ten(10)business days if there are any changes to the signatory authority.City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by Emerson. ��++ / 1. Name: Sow. L.• Com, Position: D%r-ec W cMGrGt� 'tw� �• D Signature 2. Name:T* Position: V? �A4 s. -- Signature y Signature of President/CEO/Managing Partner Title: Date Date � -5 00 01339(Back) (Rev.4-13/8) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Name of purchaser,firm or agency City of Fort Worth,Texas Address(Street&number,P.O.Box or Route number) Phone(Area code and number) 1000 Throckmorton Street 817-392-8360 City,State,ZIP code Fort Worth,Texas 76102 I,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable items described below or on the attached order or invoice) from: Seller: All Suppliers Street address: City, State,ZIP code: Description of items to be purchased or on the attached order or invoice: All items except motor vehicles as listed below Purchaser claims this exemption for the following reason: Municipality, Governmental Entity I understand that I will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with the provisions of the Tax Code and/or all applicable law. /understand thatitis a criminal offense to give an exemption certificate to the sellerfortaxable items that/know,at the time ofp urchase, will be usedin a manner otherthan thatexpressed in this certificate,and dependingon the amountoftax evaded,the offense mayrange from a Class C misdemeanor to a felony of the second degree. Purchaser Title Date sign re CFO January 4,2016 NOTE: This certificate cannot be issued for the purchase, lease,or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID. Sales and Use Tax"Exemption Numbers"or"Tax Exempt"Numbers do not exist. This certificate should be furnished to the supplier. Do not send the completed certificate to the Comptroller of Public Accounts.